Irwan Kour vs Punjab Public Service Commission

2025 INSC 494 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5235 OF 2025 ARISING OUT OF SLP (C) No. 8842 OF 2024 IRWAN KOUR ...APPELLANT(S)

VERSUS

PUNJAB PUBLIC SERVICE COMMISSION & ORS. …RESPONDENT(S)

JUDGMENT

PAMIDIGHANTAM SRI NARASIMHA, J.

1. Leave granted.

2. The short question arising for our consideration is whether

the recruitment advertisement issued by the Punjab Public Service

Commission inter alia providing reservation for “ex-servicemen”,

would include personnel from the Indian Military Nursing Service 1.

3. The appellant, an ex-serviceman, having worked as Captain

in the Medical Core of Indian Army, was selected and appointed

under the advertisement as Extra Assistant Commissioner (Under

Training) in the Punjab Civil Services (Executive Branch). She Signature Not Verified Digitally signed by INDU MARWAH Date: 2025.04.16 18:33:56 IST Reason: 1 Hereinafter “IMNS”.

1 joined service on 09.12.2022. The contesting party, respondent

no. 4, was released from IMNS and also applied under the same

advertisement as an ‘ex-serviceman’, but her candidature was

rejected by the State on 20.05.2021 on the ground that she does

not qualify under this category. Her writ petition against the

rejection of her candidature was dismissed by the learned single

judge, holding that IMNS personnel cannot claim reservation

benefits under the “ex-servicemen” category. This decision was

based on the interpretation of the Ex-Servicemen (Re-employment

in Central Civil Services and Posts) Rules, 1979 2. The division

bench, however allowed respondent no. 4’s writ appeal by the order

impugned before us. It concluded that the relevant rules governing

the recruitment, i.e., the Punjab Recruitment of Ex-Servicemen

Rules, 1982 3 do not disqualify persons who have retired from or

been released from the IMNS from claiming the benefit available to

ex-servicemen. Consequently, the High Court directed that

respondent no. 4, if found meritorious, be appointed forthwith and

be given notional benefits of service.

4. Pending disposal of the Special Leave Petition filed by the

appellant, this Court granted an interim order staying the

2 Hereinafter “Central Rules, 1979”.

3 Hereinafter “Punjab Rules, 1982”.

2 judgment and order passed by the High Court and as such the

appellant, appointed on 09.12.2022 is continuing in service.

5. We have heard Mr. Vinay Kumar Garg, learned senior counsel

appearing on behalf of the appellant, Mr. MV Mukunda for

contesting respondent no. 4, and Ms. Nupur Kumar for the State

of Punjab.

6. Short and necessary facts are as follows. The Punjab Public

Service Commission issued an advertisement on 12.12.2020

inviting applications for recruitment to number of posts under the

Punjab Civil Service (Executive Branch). Clause 2 of the

advertisement provided the number of vacancies as well as the

posts for which reservation is provided. This included reservation

for Ex-Servicemen (ESM) and Lineal Descendants of Ex-servicemen

(LDESM) as provided for under the Punjab Rules, 1982. Note (1)(b)

of Clause 11 confines the reservation only to residents of Punjab.

7. Rules 3 and 4 of the Punjab Rules, 1982 relate to the scope

and extent of their application and reservations provided. The

relevant portion of the said Rules are extracted hereinbelow for

ready reference:

“Rule 3. Extent of Application. - These rules shall apply to all the State Civil Services and posts connected with the affairs of the State

3 of Punjab, except the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service.

Rule 4. Reservation of Vacancies. (1) Subject to the provision of rule 3, 13% of vacancies to be filled in by direct appointment in all the State Civil Services and posts connected with the affairs of the State of Punjab shall be reserved for being filled in by recruitment of Ex- servicemen.”

8. The reservation for ‘ex-servicemen’ under the advertisement

must be understood as per the definition in Rule 2(c) of the Punjab

Rules, 1982, which is as under:

“2. Definitions - In these rules, unless the context otherwise requires ‘Armed Forces of the Union’ means the Naval, Military and Air Forces of the Union of India;

…

(c)"Ex-serviceman" means a person who has served in any rank, whether as a combatant or a non-combatant, in the Naval, Military and Air Forces of the Union of India (hereinafter referred to as the Armed Forces of the Union of India), and who has, -

(i) retired or released from such service at his or her own request after earning his or her pension; or

(ii) has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or

(iii) been released, otherwise than on his own request, from such service as a result of reduction in establishment; or

(iv) been released from such service after completing the specific period of engagement otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency and has been given a gratuity;

But does not include a person who has served in the Defence Security Corps, the General Reserve Engineering Force, the

4 Lok Sahayak Sena and the Para Military Forces, but includes personnel of the Lok Sahayak Sena of the following categories, namely:-

(i) pension holders for continuous embodied service.

(ii) persons with disability attributable to military service; and

(iii) gallantry award winners Explanation.—The persons serving in the Armed Forces of the Union, who on retirement from service would come under the category of ‘ex-

serviceman’, may be permitted to apply for re-employment one year before the completion of the specified terms of engagement and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform until they complete the specified terms of engagement in the Armed Forces of the Union….”

9. Before we proceed further, it is necessary to clarify that the

Central Rules, 1979 do not apply to the facts of the present case

as the recruitment advertisement was issued by the Punjab Public

Service Commission for posts under the state government. As per

Article 309 of the Constitution, the state government is entitled to

regulate the recruitment and conditions of service of persons

appointed to these posts. The Punjab Rules, 1982 have been

framed by the state government in exercise of this power under

Article 309 read with Articles 234 and 318 of the Constitution.

Further, Rule 3 of the Central Rules, 1979 (as amended in 2012 4),

restricts their applicability to Central Civil Services and posts up

4 By G.S.R. 757(E) dated 04.10.2012.

5 to the level of Assistant Commandant in paramilitary forces.

Therefore, the Central Rules, 1979 will not apply to determine the

eligibility under “ex-servicemen” category for appointment under

the advertisement issued by the Punjab Public Service

Commission. In Sansar Chand Atri v. State of Punjab5, considering

a claim for reservation as “ex-servicemen” for appointment to a

post under an advertisement by the Punjab Public Service

Commission, this Court relied only on interpretation of Rule 2(c)

the Punjab Rules, 1982.6

10. In this light, the inquiry before us is whether respondent

no. 4 would qualify as an “ex-serviceman” under Rule 2(c) of the

Punjab Rules, 1982. In so far as the appellant is concerned, there

is no doubt about her eligibility under the “ex-servicemen” category

after her release from the Indian Army upon completion of service.

Our enquiry is thus confined to the eligibility of respondent no. 4,

who joined the MNS in 2013 as a Short Service Commissioned

officer and was released on 04.09.2018, upon completion of her

service period with applicable entitlement to gratuity. We will now

examine the status of IMNS.

5 (2002) 4 SCC 154.

6 ibid, paras 4-7.

6

11. Military Nursing Service Ordinance, 1943 7 was promulgated

in exercise of powers under the provisions of the Government of

India Act, 1935. By virtue of Article 372 of the Constitution, it

continues to remain in force to this date. The “Indian Military

Nursing Service” is constituted as an auxiliary force of the Indian

Military and as part of the armed forces of the Union. Section 3 of

the MNS Ordinance provides for the constitution of MNS in the

following terms:

“Section 3. Constitution of Indian Military Nursing Service.- (1) There shall be raised and maintained, in the manner hereinafter provided, as part of the armed forces of the Union and for service with the Indian Military forces an auxiliary force which shall be designed the Military Nursing Services (India).” (emphasis supplied)

12. Section 4 of the MNS Ordinance, provides that: “The members

of the Indian Military Nursing Service shall be liable for service only

with forces and persons subject to the Army Act, 1950.” Section 5

provides that, “All members of the Indian Military Nursing Service

shall be of commissioned rank and shall be appointed as officers of

the Indian Military Nursing Service by the Central Government by

notification in the Official Gazette.” Section 6 provides for eligibility

7 Hereinafter “MNS Ordinance”.

7 for appointment, Section 7 for dismissal, Section 8 on training and

performance of duties, and Section 9 deals with application of the

Army Act, 1911 to members of IMNS, and reads:

“Section 9. Application of Army Act and Indian Army Act, 1911 to members of Indian military Nursing Service–(1) The provisions of the Indian Army Act, 1911 shall, to extent and subject to such adaptations and modifications as may be prescribed, apply to members of the Indian Military Nursing Services as they apply to Indian commissioned officers, unless they are clearly inapplicable to women.”

12.1 Further, Sections 10 and 11 deal with the power of the

Central Government and the Chief of Army Staff to make Rules

and Regulations under the MNS Ordinance, respectively.

13. From a combined reading of these provisions, it is clear that

IMNS has been constituted as a “part of the Indian military” and

“part of the armed forces of the Union”. Its personnel are officers

of commissioned rank, whose service and conduct are regulated

by the MNS Ordinance, 1943 and certain provisions of the Army

Act, 1911, Regulations made by the Chief of Army Staff, and Rules

made by the Central Government. This Court in Jasbir Kaur v.

Union of India8 has also held that the IMNS is an auxiliary force of

8 (2003) 8 SCC 720.

8 the Indian military and is a part of the Indian Army, but is a

distinct and separate class in itself. 9

14. We will now interpret the term “ex-serviceman” as defined

under Rule 2(c) of the Punjab Rules, 1982 to determine whether

IMNS personnel are eligible thereunder. Before dealing with the

language of the rule, it is essential to recognise its purpose and

object. If we understand the significance of the policy of the State

and the larger public purpose it seeks to subserve, the language of

the law opens up and the interpretative journey will lead up to the

right destination.

14.1 The State Government recognises the contribution of a

resident of the State of Punjab by joining the armed forces of the

Union. Serving the nation as part of the armed forces of the Union

requires physical fitness and that has everything to do with age.

As they serve and exit the armed forces, they may be spent force

for military, but continue to be young and capable for civil life.

Their engagement in civil society is not merely a matter of

employment opportunity for ex-servicemen but also subserves the

larger interest of the nation and also in building a fair and a

healthy society.

9 ibid, paras 5 and 13.

9

15. The policy decision of the State Government is in recognition

of the fact that the strength of army personnel from Punjab is

about 89000 persons. 10 This accounts for 7.7% of the Army’s rank

and file even though its share in the national population is 2.3%.

Effective resettlement of ex-servicemen is necessary to keep the

morale of the serving members of the defence forces. If the

resettlement of veterans is neglected, the talented youth of the

nation may not be motivated to join armed forces.

16. Rule 2(c) of the Punjab Rules, 1982, defines “ex-serviceman”

as a person who has served in any rank, as a combatant or non-

combatant, in the Naval, Military, or Air Force of the Union, and

who has retired or been released from service in certain specified

circumstances. Clause (iv) of the said rule is relevant for our

purpose. It deals with persons who have been released from service

after completing their period of engagement, otherwise than at his

own request or by way of dismissal or discharge on account of

misconduct or inefficiency and has been given gratuity.

17. Respondent no. 4 squarely falls within this definition. She

served as a Short Service Commissioned officer in the IMNS. Rule

2(c) specifically includes “Military”, along with Navy and Air Force,

10 ‘Punjab second among all states in contributing to Army’s rank and file’, The Tribune (March, 15, 2021).

10 and as per the MNS Ordinance, 1943 and this Court’s decision in

Jasbir Kaur (supra), the IMNS is a part of the Indian Military and

armed forces of the Union.

18. Considering the intention of the Punjab Rules, 1982 to

provide employment opportunities to those who served in the

armed forces, and the language of Rule 2(c) that specifically

includes Military personnel, we see no reason to exclude IMNS

personnel from the category of “ex-servicemen”. Further,

respondent no. 4 satisfies the requirements of Clause (iv) of Rule

2(c) as she was released from service upon completion of her

engagement period and was also paid gratuity.

19. At this stage, we find it necessary to deal with the submission

made by the State of Punjab that IMNS must be excluded from “ex-

servicemen” under the Punjab Rules, 1982 in view of certain

clarifications dated 31.07.2019 and 10.08.2021 issued by the

Kendriya Sainik Board, Ministry of Defence, Government of India

to this effect. We are unable to agree with this submission as the

Kendriya Sainik Board’s purpose and objective is to formulate,

advise on, and implement resettlement and welfare policies for ex-

servicemen and their dependents. While the Board may determine

the eligibility for these schemes and policies, such determination

11 does not have any bearing on the Rules formulated by the State

Government to provide reservations to ex-servicemen. The

clarifications issued by the Board do not have a direct bearing on

the Punjab Rules, 1982, which are formulated in exercise of

powers under Article 309 of the Constitution.

20. In view of the above, we agree with the decision of division

bench of the High Court that respondent no. 4 is eligible to claim

benefit under the category of “ex-servicemen” as defined in the

Punjab Rules, 1982. This is so far as respondent no. 4 is

concerned.

21. So far as the appellant is concerned, although the High Court

has not specifically dealt with her appointment, we find it

necessary to clarify the position. There is no dispute that the

appellant was eligible under “ex-servicemen” category. The issue

arises because the appellant and respondent no. 4 are perhaps

competing for the same post under this category. The appellant

was appointed to the post of Extra Assistant Commissioner (Under

Training) in the Punjab Civil Services on 09.12.2022 and has

uninterruptedly continued in service ever since. Considering the

passage of time, and her appointment and continued service in the

post, we are of the opinion that it will cause great injustice to her

12 if her appointment is cancelled or set aside at this point in time.

Her eligibility has not been doubted in any manner or at any time.

22. In view of the above discussion, we direct that respondent

no. 4 qualifies as an ex-serviceman and must be considered under

the “ex-servicemen” category. She is found to be meritorious. If she

is otherwise eligible, she must be given an appointment. She will

be entitled to notional benefits of service but will not be entitled to

any backwages. We, however, clarify that the appointment of

respondent No. 4 will not result in automatic termination of

appellant’s service.

23. For the reasons stated above, we see no reason to interfere

with the judgment of the High Court. The civil appeal is dismissed

with directions as indicated.

24. The parties shall bear their own costs.

25. Pending applications, if any, stand disposed of.

………………………………....J. [PAMIDIGHANTAM SRI NARASIMHA]

………………………………....J. [MANOJ MISRA]

NEW DELHI;

APRIL 16, 2025.

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